But while the court has not been a major constraint on gun regulations, the Second Amendment probably has been. That’s because its presence in the Constitution, even when the courts have not used it to nullify any laws, has strengthened popular support for gun rights. It has influenced public sentiment, votes and legislative debates.
In this respect the Second Amendment has worked as James Madison envisioned it. In modern America we tend to think that the Bill of Rights operates mostly through the courts, but he did not. In a 1788 letter to Thomas Jefferson making the case for the amendments, he said their chief value would be to ensure that certain rights were “incorporated with the national sentiment” and to furnish “good ground for an appeal to the sense of the community” when those rights were in danger. His speech proposing the Bill of Rights in 1789 emphasized the same points.

Liberals who want stricter gun laws are not the only participants in this debate who sometimes overstate the role of the courts. Conservative advocates of gun rights say that another Democratic appointment to the Supreme Court will make the Second Amendment a dead letter. The truth is that whoever wins the election and however the court rules, tens of millions of Americans will continue to invoke the amendment in defense of their right to own guns — and the political system will continue to respond to them.